The Supreme Court may soon answer the most significant question to arise under Title VII in recent years: is sexual orientation discrimination “sex discrimination” within the meaning of the statute? The case to watch: Evans v. Georgia Regional Hospital.

On July 6, 2017, Jameka Evans’ attorneys’ announced they would take her case all the way to the Supreme Court. Evans’ announcement follows the 11th Circuit’s refusal to grant her request for a rehearing en banc of the court’s earlier ruling, by a 3-judge panel, that sexual orientation discrimination is not sex discrimination under Title VII. That panel based its ruling on binding 11th Circuit precedent, writing it could not hold otherwise until the earlier decision was overruled by the U.S. Supreme Court or the 11th Circuit sitting en banc.

The 11th Circuit’s decision to deny en banc review parts ways with two other circuits.

In April of this year, the 7th Circuit Court of Appeals granted an en banc review of a 3-judge panel’s ruling in Hively v. Ivy Tech. Like the 11th Circuit, the 3-judge panel held it was bound by prior precedent to hold that sex discrimination does not encompass sexual orientation discrimination. On review, the full court overturned the old ruling, underscoring “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” It also called out the fallacy of courts’ ongoing attempts to differentiate between gender non-conformity discrimination, a cognizable Title VII claim, and sexual orientation discrimination, aptly observing that not being heterosexual is “the ultimate case of failure to conform” to gender stereotypes.

In May 2017, the 2nd Circuit agreed to review en banc a 3-judge panel decision affirming the dismissal of gay skydiving instructor’s sexual orientation discrimination claim. The 2nd Circuit panel also based its ruling on dated but binding precedent. The full court is set to hear the case on September 26, 2017.

All will have to wait to see if the Supreme Court agrees to hear Evans’ case. Given the circuit split created by the 11th Circuit’s decision and recent momentum in LGBTQ rights cases, it will likely agree to hear the case. Check back with the Employment Law Observer for updates. In the meantime, please contact Elizabeth Odian or your regular Hinshaw lawyer with your LGBTQ employment questions.